Al-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency , and the International ...

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AL-QAEDA & TALIBAN UNLAWFUL COMBATANT DETAINEES,..., 55 A.F. L. Rev. 1
55 A.F. L. Rev. 1
Air Force Law Review
2004
Article
AL-QAEDA & TALIBAN UNLAWFUL COMBATANT DETAINEES, UNLAWFUL BELLIGERENCY,
AND THE INTERNATIONAL LAWS OF ARMED CONFLICT
Lieutenant Colonel (s) Joseph P. “Dutch” Bialkea1
Copyright © 2004 by Lieutenant Colonel (s) Joseph P. “Dutch” Bialke
I. INTRODUCTION
International Obligations & Responsibilities and the International Rule of Law
The United States (U.S.) is currently detaining several hundred al-Qaeda and Taliban unlawful enemy
combatants from more than 40 countries at a multi-million dollar maximum-security detention facility at the
U.S. Naval Base in Guantanamo Bay, Cuba. These enemy detainees were captured while engaged in hostilities
against the U.S. and its allies during the post-September 11, 2001 international armed conflict centered
primarily in Afghanistan. The conflict now involves an ongoing concerted international campaign in collective
self-defense against a common stateless enemy dispersed throughout the world.
Domestic and international human rights organizations and other groups have criticized the U.S.,1arguing that
al-Qaeda and Taliban detainees in Cuba should be granted Geneva Convention III prisoner of war
(POW)2status. They contend broadly that pursuant to the international laws of armed conflict (LOAC),
combatants captured during armed conflict must be treated equally and conferred POWstatus. However, no such
blanket obligation exists in international law. There is nolegal or moral equivalence in LOAC between lawful
combatants and unlawful combatants, or between lawful belligerency *2 and unlawful belligerency (also
referred to as lawful combatantry and unlawful combatantry).
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The U.S. has applied well-established existing international law in holding that the al-Qaeda and Taliban
detainees are presumptively unlawful combatants not entitled to POWstatus.3 Taliban and al-Qaeda enemy
combatants captured without military uniforms in armed conflict are not presumptively entitled to, nor
automatically granted, POWstatus. POWstatus is a privileged status given by a capturing party as an
international obligation to a captured enemy combatant, if and when the enemy’s previous lawful actions in
armed conflict demonstrate that POWstatus is merited. In the case of captured al-Qaeda and Taliban
combatants, their combined unlawful actions in armed conflict, and al-Qaeda’s failure to adequately align with
a state show POWstatusis not warranted.
The role of the U.S. in the international community is unique. The U.S., although relatively a young state, is the
world’s oldest continuing democracy and constitutional form of government. The U.S. is a permanent member
of the United Nations Security Council, the world’s leading economic power, and its only military superpower.
The U.S. is the only country in the world capable of commencing and supporting effectively substantial
international military operations with an extensive series of military alliances, and the required numbers of
mission-ready expeditionary forces consisting of combat airpower, land and naval forces, intelligence, special
operations, airlift, sealift, and logistics. Great influence and capabilities, however, exact great responsibility.
As a result of its unique role and influence within the international community, the U.S.has been placed at the
forefront of respecting LOAC and promoting international respect for LOAC. The U.S. military has the largest,
most sophisticated and comprehensive LOAC program in the world. The U.S. demonstrates respect for LOAC
by devoting an extraordinary and unequalled level of resources to the development and enforcement of these
laws, through an unparalleled LOAC training and education regimen for U.S. and allied *3military members,
and a conscientious and consistent requirement that its forces comply with these laws in all military operations.
Customary LOAC binds every country in the world including the U.S. International collective security and U.S.
national security may be achieved only through a steadfast commitment to the Rule of Law. For the U.S. to
grant POWstatusto captured members of al-Qaeda or the Taliban would be an abdication of these international
legal responsibilities and obligations. It would set a dangerous precedent contrary to the Rule of Law and
LOAC, and to the highest purpose of the laws of warfare, the protection of civilians during armed conflict.
This article begins by explaining how LOAC protects civilians through the enforcement of clear distinctions
between lawful combatants, unlawful combatants, and protected noncombatants. It summarizes the four
conditions of lawful belligerency under customary and treaty-based LOAC, and instructs why combatants who
do not meet these conditions do not possess combatant’s privilege; that is, the immunity provided to members
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of the armed forces for acts in armed conflict that would otherwise be crimes in time of peace.
The article then reviews why LOAC does not require that captured unlawful combatants be afforded
POWstatus, and addresses specifically captured al-Qaeda and Taliban fighters. The practices and behavior of
these fighters en massein combat deny them privileges as lawful belligerents entitled to combatant’s privilege.
The article argues that al-Qaeda unlawful combatants are most appropriately described as hostes humani
generis, “the common enemies of humankind.”
The article subsequently explains why al-Qaeda members, as hostes humani generis, are classic unlawful
combatants, as part of a stateless organization that en masseengaged in combat unlawfully in an international
armed conflict without any legitimate state or other authority. The article explicates al-Qaeda’s theocratic-
political hegemonic objectives and its use of global terrorism to further those objectives. The article expounds
as to why international law deems a transnational act of private warfare by al-Qaeda as malum in se, “a wrong
in itself.” Related to al-Qaeda’s statusas hostes humani generis, the article describes one of the Taliban’s many
violations of international law; that is, willfully allowing al-Qaeda hostes humani generis to reside within
Afghanistan’s sovereign borders from where al-Qaeda could and did attack unlawfully other sovereign states.
The article then details a state’s inherent rights if and when attacked by such hostes humani generis.
Following this, the article continues by asserting that there is no doubt or ambiguity as to the unlawful
combatant statusof the Taliban and al-Qaeda (shown by the failure of the Taliban en masseto meet the four
fundamental criteria of lawful belligerency, al-Qaeda’s statelessness en masse, and both their many acts of
unlawful belligerency and violations of LOAC). As a result, the article states that there is no need or
requirement for proceedings under *4 Geneva Convention III, art. 5 to adjudicate their presumptive unlawful
combatant statusand non-entitlement to POWstatuspro forma.
The article subsequently illustrates that, even though captured al-Qaeda and Taliban are unlawful combatants
and not POWs, the U.S. as a matter of policy has treated and continues to treat all al-Qaeda and Taliban
detainees humanely in accordance with customary international law, to the extent appropriate and consistent
with military necessity and in a manner consistent with the principles and spirit of the Geneva Conventions. The
article discusses that, under LOAC, the detainees are captured unlawful combatants that can be interned without
criminal charges or access to legal counsel until the cessation of hostilities. However, the article then points out
that the U.S. has no desire to, and will not, hold any unlawful combatant indefinitely.
The article then notes that al-Qaeda and Taliban detainees, as unlawful combatants, are subject to trial by U.S.
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military commissions for their acts of unlawful belligerency or other violations of LOAC and international
humanitarian law. It expounds that, when an opposing force detains an unlawful combatant in time of armed
conflict, the unlawful combatant’s right to legal counsel or other representation only arises if criminal charges
are brought against the unlawful combatant. The article illustrates the security measures, evidence procedures,
and the many executive due process protections afforded to detainees subject to the jurisdiction of U.S. military
commissions. The article states that, if tried and convicted in a U.S. military commission, a detainee may be
required to serve the adjudged sentence, such as punitive confinement.
The article concludes that it is in the immediate and long-term national security interests of the U.S. to respect
and uphold LOAC in all military operations. Ultimately, the United States has an obligation to the international
community and the Rule of Law not to afford POWstatusto captured unlawful combatants such as the al-Qaeda
and Taliban detainees in furtherance of both domestic and international security.
II. INTERNATIONAL LAW, THE U.S., AND TALIBAN & AL-QAEDA UNLAWFUL
BELLIGERENCY
Formatt
A. Lawful Combatants, Unlawful Combatants, and Noncombatants
Formatt
1. Not all Captured Combatants are Entitled to POWStatus
According to both customary and treaty-based LOAC, al-Qaeda and Taliban detainees do not meet the
requirements to be lawful combatants. They are unlawful enemy combatants who are not legally authorized
under LOAC to engage in armed conflict, but do so without authority. Unlawful combatants also include
combatants who engage in armed conflict in a manner that violates certain international laws of armed conflict.
Unlawful combatants are *5proper objects of attack during an international armed conflict, and upon capture,
may be denied Geneva Convention III POWstatus.4 In such cases, whenever the U.S. withholds Geneva
Convention III POWstatus from captured unlawful combatants, U.S. policy directs that they be treated
humanely and similar to lawful combatants or POWs.5Additional to the *6Geneva Conventions of 12 August
1949 (Protocol I)6also recognizes that unlawful combatants captured during an international armed conflict are
not *7required to be accorded POWstatus. Art. 75 describes unlawful combatants as individuals “who are in
the power of a Party to the conflict and who do not benefit from the more favourable treatment under the
Conventions or under this Protocol.” Although the U.S. is not a signatory to Protocol I, the U.S. views art. 75
and its principle, that not all combatants captured in armed conflict are entitled to POWstatus, as a reiteration of
existing customary international law.7
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2. Lawful/Unlawful Combatants and Noncombatants
Armed conflict places large numbers of civilians on all sides of a conflict in grave situations where the risks of
death, suffering, loss, and other depredations are extremely high. This is especially so when combatants
disguise themselves unlawfully as protected noncombatant civilians.8LOAC has long been designed to mitigate
the risks to civilians by clearly distinguishing lawful combatants(such as uniformed military personnel under a
responsible chain of command, who carry arms openly, and who are obliged to and do follow international law)
from unlawful combatants (such as members of the Taliban who en masse do not meet the four criteria of
lawful belligerency and who en massehave willfully and continually failed to follow LOAC, and al-Qaeda who
en masseare stateless and whose right to take up arms is not recognized under international law).9
*8 Further, and perhaps more importantly, LOAC clearly distinguishes both lawful combatants and unlawful
combatants from protected noncombatants (such as protected civilians, interned civilians, military medical
personnel, military chaplains, civilian war correspondents and journalists, United Nations peacekeepers,
military members who are hors de combat-meaning those individuals who are “out of the fight” such as sick or
wounded combatants, non-aggressive aircrews descending by parachute after the destruction of their aircraft,
shipwrecked combatants, interned battlefield detainees, POWsand other captured combatants).10
*9 These essential customary international law distinctions between lawful/unlawful combatants and
noncombatants prevent collateral deaths and suffering of protected civilians and other noncombatants during
armed conflict. LOAC serves to protect noncombatants by providing all combatants an unambiguous positive
incentive to constrain their behavior as well as the potential of future punishment for failing to do so.
3. Lawful Belligerency: Combatant’s Privilege & POWStatus
If a combatant follows LOAC during war, “combatant’s privilege” applies and the combatant is immune from
prosecution for lawful combat activities. For example, a lawful combatant may not be tried for an act (such as
assault, murder, kidnapping, trespass, and destruction of property) that is a crime under a capturing party’s
domestic law in time of peace, when that act is committed within the context of hostilities and does not
otherwise violate LOAC.11 In addition, the captured lawful combatant receives Geneva *10 Convention III
POWstatuswith its special rights, better conditions, and more extensive set of benefits.
Conversely, if a combatant ignores the criteria of lawful belligerency, the individual may be deemed an
unlawful combatant. An unlawful combatant is also referred to with identical meaning as an illegal combatant,
unprivileged combatant, franc-tireurmeaning “free-shooter,” unprivileged belligerent, dishonorable belligerent
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or unlawful belligerent. The unlawful combatant may then, upon capture in an international armed conflict at
the discretion of the capturing party, forfeit combatant’s privilege and Geneva Convention III POWstatus, and
not be afforded full POW protections under Geneva Convention III. Further, if the unlawful combatant has
committed grave breaches of LOAC, the individual may be tried in a military commission; and if convicted, be
punished appropriately.
*114. Combatant Duty to Appear Visually Distinct from Noncombatant Civilians
Of paramount importance is that all combatants have an unconditional legal duty in armed conflict to protect
noncombatant civilians by distinguishing themselves visually from the civilian population. Failure to do so with
perfidious intent is a violation of LOAC. Geneva Convention III mandates as one of the four essential criteria of
lawful belligerency that all combatants in international armed conflict must wear distinctive dress.12Similarly,
customary international law, the practice among states over time, provides that spies, saboteurs, terrorists,
resistance groups, guerrillas, irregulars, militias, insurgents, and other combatants, if captured in an
international armed conflict while impersonating protected civilians perfidiously, do not necessarily share the
same advantaged fate and implicit international stature as do uniformed lawful combatants.13International law
*12has long recognized that combatants who hide among and attempt to blend into civilian populations during
armed conflict are uniquely dangerous to protected noncombatant civilians.14
*13If an opposing side is unable to differentiate between combatants who may legally engage in combat and
protected noncombatantcivilians who may not lawfully engage in combat, the opposing side might be tempted
then to wrongfully and indiscriminately target everyone within an operational theater. A primary purpose of
LOAC is to proactively stave off such desperate “cannot tell apart the enemy soldiers from the civilians, so
shoot them all” criminal acts of reductionism. LOAC seeks to protect civilian populations by proscribing
conduct that endangers such populations unreasonably, such as taking part in combat without wearing a
distinctive uniform or other form of identification that is clear and visible at a distance. As stated earlier, the
capturing party has the prerogative to deny such unlawful combatants POWstatus and some of its related
benefits; and if applicable, try them for criminal acts of unlawful belligerency.15 This is a balanced, time-
honored, and practical method of encouraging compliance with LOAC.
*145. Enforcement of LOAC
It is important to appreciate that all combatants captured in armed conflict are not equal and should not be
treated in the same manner. To relax or merge the categories of lawful combatants and unlawful combatants is
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to step backwards, diminish the effectiveness of LOAC, and begin to retrogress the difference between
civilization and barbarism. It is reasonable to conclude that individual lawful combatants would be less likely to
join and fight alongside rogue unlawful combatants if there is universal international illegitimacy of such
aligned conduct, subsequent lack of Geneva Convention III POWstatus upon capture, and the potential for
punitive sanctions. Not conferring POWstatus to captured unlawful combatants such as al-Qaeda and Taliban
fighters who do not merit such status (and other armed forces who mimic protected civilians perfidiously),
however, is the primary and most meaningful way of retaining, reinforcing, and not diluting the extremely vital
lawful/unlawful combatant and noncombatant distinctions that are so central to LOAC and itsenforcement.
The pragmatic incentives not to endanger, and deterrents against endangering, protected noncombatants
(particularly the civilian population) are only useful if other parties to the armed conflict consistently comply
with, and enforce strictly the requisite distinctions contained within international law. Laws that are not
enforced will not deter the armed forces of countries that do not have the propensity to otherwise adhere to such
laws. The U.S. is committed to conducting its military operations in accordance with LOAC and, more
specifically, to protecting civilians in armed conflict by preserving and enforcing the indispensable distinctions
between lawful combatants, unlawful combatants, and noncombatants.
*15During WW II, for example, in ex parte Quirin,16the U.S. Supreme Court upheld the unlawful belligerency
military commission convictions of eight German saboteurs, who disembarked German U-boats off the U.S.
East coast, came ashore and discarded their military uniforms, and were later captured in civilian clothes in U.S.
territory. Six of the unlawful combatants were then executed and the two remaining saboteurs were sentenced to
and served lengthy terms of confinement.17
Admittedly, the 1949 Geneva Conventions, and other international laws of armed conflict, do not specifically
envisage an armed conflict resembling the armed conflict against al-Qaeda continuing in Afghanistan and
elsewhere across the globe. An asymmetric international armed conflict where one party (the Taliban, a de facto
state) sponsors and partially incorporates members of a global stateless organization (the al-Qaeda) that directs
relatively independent factions to engage in massive and worldwide suicidal terrorism against protected civilian
populations, is a fairly new paradigm. Regardless of these atypical attributes of de facto-state sponsored
international terrorism, determining the legal status of captured combatant Taliban and al-Qaeda members in
accordance with existing LOAC remains a matter of relatively simple analogy.
The unconventional operations and attacks of al-Qaeda and the Taliban in armed conflict are much more
dangerous and lethal to protected noncombatant civilians than has been seen historically with saboteurs, spies,
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guerillas, and other typical unlawful combatants who mask themselves perfidiously as protected civilians. In
contrast to merely hiding among protected civilian noncombatants illegally, al-Qaeda has squarely targeted
them and has attempted to maximize civilian casualties with the apparent approval of the Taliban. Nonetheless,
al-Qaeda and Taliban behavior of exploiting civilian disguise in armed conflict unlawfully is related closely to
the conduct of the types of civilian-attired unlawful combatants referenced above. Neither group is entitled to
POWstatusupon capture.
Moreover, the novel and illegal manner in which al-Qaeda and the Taliban wage war bears little if any
similarity to how lawful combatants (who would be granted POWstatus upon capture) conduct military
operations. During the global armed conflict ongoing in Afghanistan and elsewhere throughout the world, al-
Qaeda and Taliban combatants are much more representative of war criminals than they are of honorable, law-
abiding armed forces.It follows that members of al-Qaeda and the Taliban are unlawful combatants, rather than
lawful combatants, and therefore are not entitled to POWstatus upon capture. Further, al-Qaeda and Taliban
detainees should be prosecuted, when appropriate, for substantiated violations of LOAC.
*16B. The Taliban and the Four Criteria of Lawful Belligerency
1. The Geneva Conventions Apply to the Taliban as the De Facto Government of Afghanistan
The Taliban was the primary faction fighting in a civil war within the failed state of Afghanistan from the mid
to the late 1990s. Taliban militant extremists loosely controlled the majority of Afghani territory from 1996 to
2001 as a de facto regime. This is despite the fact that neither the United Nations nor the League of Islamic
States recognized the Taliban regime as the de juregovernment of Afghanistan, nor did the rest of the world -
only three regional Islamic countries diplomatically recognized the Taliban as the legitimate government of
Afghanistan: Saudi Arabia, Pakistan, and the United Arab Emirates. These three countries each severed
diplomatic ties with the Taliban during the weeks following al-Qaeda’s terrorist attacks of September 11, 2001
and preceding the U.S.-led coalition international armed response in the exercise of their inherent right of
collective self-defense.
Even though the Taliban was not the legitimate northe predominantly recognized government of Afghanistan,
the U.S. stipulated that the Geneva Conventions would apply to Taliban combatants because Afghanistan is a
signatory to the Geneva Conventions and the Taliban exercised de facto governance over most of the failed
state of Afghanistan.18 However, as the de facto government, the Taliban then bore responsibility for
Afghanistan, the international obligations of Afghanistan to include LOAC, the Taliban’s conduct, and the
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conduct of the Taliban armed forces. When the U.S. subsequently applied the lawful belligerency criteria of
LOAC to the collective conduct of the Taliban and its armed forces, such conduct was determined to be
unlawful.
2. The Four Criteria of Lawful Belligerency: Being commanded by a person responsible for his
subordinates; Having a fixed distinctive sign recognizable at a distance; Carrying arms openly; and
Conducting military operations in accordance with the laws and customs of war.
After reviewing the substantiated institutional policy and practice in armed conflict of an armed force that en
massewillfully and egregiously fails to follow the four requirements of lawful belligerency in armed conflict,
an opposing party may then designate administratively the armed force en masse as a class of unlawful
combatants. As a result, the U.S. regards captured Taliban as unprivileged combatants whose unlawful actions
as a group (as *17 described below) have presumptively excluded them from Geneva Convention III
POWstatusthat is afforded to captured privileged lawful combatants who have subscribed to and honored the
four criteria of lawful belligerency contained within LOAC.19
Because the Taliban as an entity does not meet the standards of lawful belligerency, and therefore as an entity
lacks lawful combatant status and combatant’s privilege, the U.S. accordingly considers captured individual
Taliban members to also lack lawful combatant statusand combatant’s privilege, and as such has not extended
to them POWstatus. Such classification of the Taliban as unlawful combatants is not “collective criminal
punishment.” It is, however, a factually accurate collective administrative determination. Correspondingly, nor
is it “criminal guilt by association.” It is, however, the lack of lawful belligerency statusby association (coupled
with the lack of combatant’s privilege and, upon capture, POWstatus).
The term “unlawful combatant” is not mentioned in international treaties that regulate armed conflict, but it is
implicit within them.20The *18Brussels Declaration of 1874, art. IX;21the 1899 Convention with Respect to
the Laws and Customs of War on Land, Annex art. 1; the Hague Convention of 1907, No. IV, Annex art. 1;22
and the Geneva Convention III of 1949, art. *19 4A,23 all list the four fundamental conditions of lawful
belligerency. The immutability and stalwart enforcement of these four categorical pillars of lawful belligerency
are indispensable to the prevention of war crimes and to the safety of protected civilians and other
noncombatants in international armed conflict. To an armed force in armed conflict, the four requirements of
lawful belligerency are not discretionary.
If an armed force en masse does not follow LOAC, the armed force en masse does not receive some of the
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protections of such laws, specifically POWstatusupon capture. Otherwise, the al-Qaeda and Taliban detainees
would profit from an asymmetric and unequal application of LOAC, receiving the full protections and benefits
of LOAC while en masse denying the same to their *20 foes. Again, an accurate designation en masse of
unlawful belligerency so made, and the attendant forfeiture of POWstatus are not considered punitive to the
individual combatant. Rather, an unlawful combatant designation with its denial of POWstatusis in accordance
with the fundamental principle and maxim of international law, jus ex injuria non oritur, “a right does not arise
from a wrong.”
Such a collective administrative designation of unlawful combatant status is an adverse action that, when
imposed suitably and fairly, is designed to accurately characterize en massethe conduct of the armed force that
has acted unlawfully. More importantly, the potential for such a stigmatizing characterization with its
concomitant negative consequences is to deter armed forces from failing en masse to follow the four
requirements of lawful belligerency. Finally,the potential for lack of lawful belligerency statusand POWstatus
upon capture is to deter individual combatants from associating with stateless (or rogue state) armed forces that
en masse, by institutional policies and practices in armed conflict, willfully and egregiously fail to follow the
four requirements of lawful belligerency.
These four definitional criteria of lawful belligerency under Geneva Convention III, art. 4A apply strictissimi
juris, “of the strictest right or law,” to every unit or group within a state’s regular armed forces as a matter of
customary international law.24Also, these requirements specifically and *21strictly bind volunteer forces, such
as militia and other irregular forces, which form part of a state’s armed forces.25 By default, then, groups of
combatants *22who do not fulfill these four specified conditions and do not fight in *23accordance with them
are engaging in unlawful belligerency, and are therefore unlawful combatants. In this way, customary and
treaty-based international law is designed specifically to deter violations of LOAC by defining unequivocally
the four minimum requirements of lawful combatants and thereby excluding captured unlawful combatants
from POWstatus. The four combatant requirements of lawful belligerency are explained in more detail below.
i.Have a responsible and effective military chain-of-command.26In other words, forces must have an operative,
structured hierarchical system of military good order and discipline acting under an authority that expressly
subjects itself to international law. The chain-of-command must proactively train its armed forces regarding
LOAC, consistently mandate strict compliance with such laws, and diligently investigate allegations of
violations committed by its forces or allies. Further, when allegations are substantiated, the chain-of-command
must justly prosecute alleged violators and, if convicted, punish violators appropriately. The chain-of-command
must also otherwise remain answerable for the conduct of its subordinates, enough so that it is reasonably clear
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